Brearley School, Ltd. v. Ward

Gray, J.

(dissenting). I dissent upon the ground that the statute in question, (Code of Civ. Proc., section 1391), did not affect trusts created prior to its enactment. The trust fund in question was created by the will of JVlontagnic Ward, who died in 1879. He gave to trustees shares of his estate for the benefit of his children, of whom this appellant Yvas one, and directed the payment over of the net income, or interest, to each child during his, or her, natural life. This appellant’s share was set apart in 1879 and its income has been applied to his use since that time. The statutory provision, under which the application below Yvas made, was enacted in 1908. I think that to give the statute retroactive effect is to deprive the appellant of property without due process of law. This trust was lawfully created and when it became operative, upon the testator’s death, the law attached but one condition to the full enjoyment of the income by the beneficiary and that was that the surplus income beyond the sum necessary for his education, or support, should be liable to the claims of creditors, as other personal property. Except for that, such a trust provision was within the protection of the statutes of the state and the right of the beneficiary in relation to it was, and is, property. The trust originated in the acceptance by the trustees of the property and the trustees’ ownership of the trust property was inseparably subjected to a duty, and connected with a right, for the benefit of another. The trustees’ tenure was dependent upon conditions having no relation to any interest of theirs in the estate. Ho property right can be predicated of the estate of a trustee. Every beneficial proprietorship, or interest, is in the

cestui que

trust, for whom the trust estate is held and who has the right to enforce the performance of the trust.

(Metcalfe

v.

Union Trust Co.,

181 N. Y. 39, 44 .) The interest of the beneficiary in the maintenance of the trust in all its integrity is a valuable property right, which the statute confers, and while it may be compe

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tent for the legislative body of the state, in the control assumed, over the transmission, and testamentary disposition, of property, to attach new conditions thereto for the future, I am quite unable to perceive how. it may validly, not to say justly, alter existing conditions affecting property rights, or a vested interest in property. For that is the nature of this beneficiary’s interest. Upon the. death'of the testator and the acceptance by the trustees of the trust estate given them, what resulted was, in effect, a convention, authorized by the law, under which the trustees agreed, and became obligated, to apply the trust income for the benefit of the beneficiary, solely; except so far as it might be shown to exceed his needs. That there was no contract with the state, nor any contract in the technical sense, may be conceded ; but there was an engagement assumed by the trustees, which devolved upon them the legal duty to apply, and conferred upon the appellant the right to receive, for his life, the income of the estate held; subject only to the right of creditors to reach the surplus beyond what was necessary for his support. If the legislature may validly change the statute so as, arbitrarily, to direct the application of tori per cent of the income to the claim of a creditor, it may, as competently, direct the application of any percentage; even to the whole. There is a material, indeed a radical, difference between the provision of the statute, which, at the time of the creation of the trust, subjected the surplus income, only, to the claims of creditors, and the amendment, now in question, which subjects a percentage of all trust incomes, arbitrarily, to their claims. I cannot subscribe to a doctrine, which is so radical and so regardless of vested lights. The principle of our decision in

Livingston

v. Livingston, ( 173 N. Y. 377 ), is as applicable to the present case. In my judgment this appellant’s interest in, and right to, the trust provision under this will were safeguarded by the Constitution.and may not be impaired. To allow the statute retroactive effect is, as I have before observed, to deprive the appellant of property without due process of law and such a construction is as unnecessary, as it

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is violative of a substantial and- vested right. It is not a question of exemption, or lessening of exemption; it is a question whether that may be taken away, which the statute authorized as a provision by a testator, when making a final disposition of his estate.

Cullen, Cli. J., Vann and Werner, JJ., concur with Willard Bartlett, J.; Haight and Chase, JJ., concur with Gray, J.

Order affirmed.